Frank Smoker, a State prisoner at the State Correctional Institution, Huntingdon, Pennsylvania, filed a Petition for Writ of Habeas Corpus presenting the issue of whether he was denied the right of a speedy trial, with respect to the final disposition and sentence, under the due process clause of the Fourteenth Amendment of the Constitution of the United States.

The sentence he is presently serving was imposed in Indiana County, Pennsylvania, on October 18, 1960, on three indictments charging burglary, larceny and receiving stolen goods. He was sentenced for a term of two to five years on each indictment to run concurrently with each other but to begin at the expiration of a Clearfield County sentence. The plea of guilty upon which the Indiana County sentence was predicated was entered on December 24, 1956.

The sequence of sentences is as follows: Smoker was sentenced in Westmoreland County, Pennsylvania, on December 18, 1956, to an indeterminate to six year sentence. He was taken to Indiana County, Pennsylvania, and there entered a plea of guilty on December 24, 1956, as above stated. He was taken to Clearfield County, Pennsylvania, in February 1957 and there pleaded guilty and was sentenced on February 9, 1957 to an indefinite sentence to run concurrently with the Westmoreland County sentence of December 18, 1956. On February 10, 1957 he escaped from the Clearfield County Jail and after being apprehended, was sentenced in Clearfield County on February 20, 1957 to two and one-half to ten years for prison breach, aggravated assault and battery and larceny of two automobiles. Then on May 29, 1957, he was sentenced in Allegheny County on charges of burglary, larceny and receiving stolen goods, to a term of two and one-half to ten years to run concurrently with the two and one-half to ten year Clearfield County sentence. On March 1, 1960, he was paroled on the December 18, 1956, Westmoreland County sentence and started serving the concurrent two and one-half to ten year sentences of Clearfield County and Allegheny County, as well as a one to two year concurrent sentence which had been imposed in Westmoreland County.
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Having been paroled on September 1, 1962, on the concurrent Clearfield County, Allegheny County and Westmoreland County sentences, he began the service of the two to five year Indiana County sentence now before us.

As stated in 39 C.J.S. Habeas Corpus § 13, page 441, 'The right of a person to the writ of habeas corpus depends on the legality or illegality of his detention, and this in turn depends on whether the fundamental requirements of law have been complied with, and not at all on the guilt or innocence of the prisoner, or the justice or injustice of his detention on the merits.'

The sole question before us is whether Smoker was deprived of a constitutional right in the imposition of the Indiana County sentence.

Smoker was sentenced in Indiana County almost three years and ten months after the plea was entered. No valid reason has been assigned for the delay. He was sentenced on other offenses in other counties, and on subsequent offenses after the entry of his plea in Indiana County. There was a detainer against him during this entire period. He alleges that he has exhausted his State remedies and this has not been denied.

Neither the County Judge, the former District Attorney,
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or the Clerk of Court testified orally or by deposition or sought to submit affidavits
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bearing upon or negativing any of petitioner's statements, nor were the records or any witnesses from the Correctional Institution produced in contradiction of petitioner's allegations.

At the time the plea was entered in 1956, Smoker was represented by an attorney. As to this counsel for the Respondent stated, 'I think the most important thing and the most difficult thing for this young man to overcome at this present time is that when he came to Indiana County in 1956 he had counsel of his own choosing. There is no record that counsel ever withdrew. There is no record that the counsel ever requested that he be brought back there, and this man in his own papers says that Paul McCormick lived a few years after the plea.' Smoker testified, 'I lost touch with my attorney after I was committed to the penitentiary. * * * There were two of us, and he was mainly representing my co-defendant. In other words, I don't know how to explain it, but he wasn't really my counsel. He had his brother appear in court for me in Westmoreland County, but he himself represented the co-defendant -- In Indiana County I imagined he represented me but his brother didn't show up who was supposed to be representing me. So I had had no funds. I had no call on him, and he said that whenever he would bring the matter up himself -- Now, anyway, I lost touch with him because I relied on him but I don't know how long he lived after that * * *.' He stated that he believed it was around two years after the plea. One could hardly expect an indigent prisoner to be more accurate, but the exact date of death of this member of the Bar, if material, could easily have been ascertained by Respondent. Smoker's testimony is consistent with his assertions as to personal letters requesting disposition of the pending proceeding, and his obtaining the aid of the Correctional Institution in making further requests. Certainly deceased counsel cannot be visited with the onus of any dereliction by authorities after his death. This Court did not have the benefit of the record of what transpired either at time of plea or of sentence. It is conceded, however, that when before the Court for sentence 'he at that time stated that the judge could not sentence him, could not pronounce sentence because the matter was too old.'
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Under the situation as presented in this case I conclude that no proper reasons have been presented to justify the delay, and that the deferment of the sentence following the entry of a guilty plea in the State Court for a period of almost three years and ten months, in the face of repeated requests for final disposition of the case, deprived the petitioner, Frank Smoker, of due process of law as guaranteed by the Fourteenth Amendment of the Constitution of the United States in that in spite of repeated requests, a speedy trial was denied him and that this has been prejudicial to his rights. The problems involved and the law in relation thereto received full and able discussion by Judge McIlvaine in United States ex rel. Giovengo v. Maroney, supra, and I am in full accord therewith. No purpose would be served by repeating them here.

The foregoing Opinion is intended to be considered as the Findings of Fact and Conclusions of Law of this Court.

Order discharging the petitioner will be entered.

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